R v Sahari [2007] VSCA 235

Court of Appeal (Vic)|2007-10-16|Before: MAXWELL P and ASHLEY and KELLAM JJA

Criminal law - Sentencing - Reckless conduct endangering life - Aggravated burglary - Discount for co-operation with authorities - Sentencing judge stating specific discount for co-operation - Whether error of law to do so - Appeal dismissed.

**1 I will ask Kellam JA to deliver the first judgment.

Prohibited person possessing unregistered firearm

**3 The appellant admitted numerous prior convictions, many of which related to drug offences. They included a conviction for burglary and armed robbery.

4 After hearing a plea in mitigation of sentence, and on 29 November 2006, the learned sentencing judge sentenced the appellant as follows:**

Count 7 - Prohibited person possessing unregistered firearm

His Honour directed that four months of the sentence imposed on count 1, three months of the sentence imposed on count 2, two months of the sentence imposed on count 5, nine months of the sentence imposed on count 6 and 18 months of the sentence imposed on count 7 be served cumulatively upon each other and upon the sentence of imprisonment imposed on count 4. The total effective sentence imposed was thus eight years' imprisonment. He directed that the appellant serve a minimum of five years' imprisonment before becoming eligible for parole.

**5 The appellant sought leave to appeal against sentence and leave was granted by a single judge of this Court on 6 June 2007 pursuant to s 582 of the Crimes Act 1958.

6 Before dealing with the appellant's arguments in support of his appeal, it is necessary to describe briefly the circumstances of the offending as they were found by his Honour.

7 The appellant was born on 11 March 1973 and accordingly, at the date of the offences, which took place between 4 July and 6 July 2005, he was 32 years of age. He had met the complainant early in 2004 and subsequently formed a relationship with her. He and the complainant took up residence together for a period of approximately four months from August 2004, but late in that year the relationship deteriorated and the parties separated. Over the following months there was continuing contact between the appellant and the complainant. There were attempts to reconcile their differences. As the sentencing judge said, 'in the good times' the appellant and the complainant shared a bed and exchanged endearing messages, but in the 'bad times' their conduct towards each other led to complaints being made to police. As a result of this conduct, both the complainant and the appellant applied separately for, and obtained, intervention orders against each other in March 2005. However, despite the existence of those orders, both the appellant and the complainant continued to send, or leave, many text or recorded messages for each other on their telephones. The sentencing judge stated that the words often reflected the anger of the one sending or leaving the message, and the words used seemed to be calculated to inflame 'as much as possible the anger of the one to whom the message was sent or left'.

8 In early July 2005, the complainant sent text messages to the appellant that, to use the judge's words, 'enlivened' the appellant's anger with the complainant. Over a period of three days between 4 July and 6 July 2005, the appellant made a number of telephone calls and left threatening voicemail messages for the complainant. By this means in particular, threats were made by the appellant that he would kill the complainant. These threats form the factual basis of count 1 (threat to kill).

9 On Monday 4 July 2005, the appellant met with two women in St Kilda. They were sex workers and, like the appellant, were heroin users. On the evening of 4 July 2005, the two women stayed at the appellant's home and soon learned of the frequent messages passing between the appellant and the complainant. The appellant told the two women a number of things about the complainant. He told them that the complainant owed him money and that there was money and 'dope' at her home. The appellant suggested to them that it would be 'worth their while' to go to her home, scare her, and rob her of the money and the dope. As the judge said, these 'stories' could only have been calculated to 'stir up the two women emotionally against the complainant'.

10 On 5 July 2005, there was a direct telephone call between the appellant and the complainant during which she was further threatened by him. At that time the two women in question were present with the appellant. That night, at approximately 11 p.m., the appellant drove with the two women to the home of the complainant. He remained in his car whilst one of the women left his car to go to the complainant's flat. That woman knocked on the front door and called out the complainant's name. The complainant answered the door and was confronted by the woman, who pushed open the door forcefully on to her and then entered the premises. The forceful opening of the door by the intruder caused the complainant to fall. Fortunately, the complainant had a male visitor, who came to the aid of the complainant, with the result that the intruder ran from the premises. The entry into the property by the intruder, at the instigation of the appellant, forms the subject of count 2 (aggravated burglary), and the assault of the complainant by the forceful opening of the door comprises the factual basis of count 3 (common assault).

11 After the assault upon the complainant in her home, the appellant and his two co-offenders returned to his home, where he showed them a .25 calibre handgun. The next day, in company with the two co-offenders, he attended upon a gun shop and there attempted to purchase a quantity of ammunition for the handgun. The owners of the gun shop refused to sell him ammunition as he was unable to produce a valid firearms licence. However, whilst he was in the shop, he was observed to have a magazine for the handgun with three cartridges in it.

12 Later that afternoon the appellant made further contact with the complainant by way of telephone and proceeded to make further violent threats to her. These threats form part of the factual basis of count 1.

13 Over the course of the day, the appellant, together with his two female co-offenders, agreed to attend again at the complainant's premises. At approximately 11 p.m. that night, the appellant drove the two women to the home of the complainant. The appellant had with him his loaded handgun. One of the two women had a tyre lever which had been removed from the appellant's car. The three people then went to the door of the home of the complainant. One of the women knocked on the door. The complainant enquired about who was at the door, and the woman said that it was the police. The complainant did not believe that and denied entry to the three co-offenders. She commenced to call 000 to report the incident. The appellant continued to knock on the door and one of the women accompanying him screamed out to the complainant to open the door. The appellant then discharged a gunshot from his handgun through the front door at door lock height. The bullet went through the door and into the wall opposite the door. The complainant was in the vicinity of the door at the time. The appellant then discharged a further shot, which went through the front lounge room window adjacent to the front door and struck a lamp on the far side of the room. The woman with the tyre lever then used it to smash the same window. One of the women pulled down the Venetian blinds attached to that window and the complainant was then seen to be on the telephone, with which the appellant and his two co-offenders made a prompt departure. A crime scene examination demonstrated that the first gunshot projectile lodged in the hallway wall a very short distance from where the complainant had been standing. The discharging of the firearm in close proximity to the complainant constitutes the factual basis of count 4 (reckless conduct endangering life). The count of damaging property, count 5, relates to the smashing of the window and the damage to the door. The attempted entry into the premises with the intention to assault constitutes count 6 (attempted aggravated burglary), and the appellant's possession of the unregistered firearm, he being a prohibited person, constitutes count 7.

14 The appellant seeks to overturn the sentences imposed upon him on the three grounds set out in his full statement of grounds that;**

1. the sentencing judge erred in adopting a two-tiered approach to sentencing,
2. the sentencing judge gave insufficient weight to the appellant's undertaking to give evidence against his co-accused,
3. the sentence is manifestly excessive.

15 In the course of the plea, the appellant gave evidence that several days before the commencement of the plea he had provided a statement to police. He agreed to give evidence in the trial of his co-accused. In the course of his sentencing remarks, his Honour stated as follows:**

Further, your head sentence will be one year shorter because of your co-operation in both providing a statement to the police and undertaking to give evidence against the two women.

It is submitted by counsel for the appellant that by so doing the sentencing judge engaged in a two-tiered approach to sentencing, rather than sentencing by intuitive synthesis. The respondent submits in written submissions that the sentencing judge did not adopt a two-tiered approach in his reasoning at all. It is submitted that it is obvious from an overall reading of his Honour's sentencing remarks that he engaged in an intuitive synthesis approach and that, having done so, his Honour then stated the specific allowance which would be made by him in arriving at the ultimate sentence on account of the appellant's assistance to the authorities.

16 The instinctive synthesis approach to sentencing, which has long been adopted by Victorian courts, and which was approved recently by the High Court in Markarian v The Queen[1], generally does not permit the identification of specific quantified discounts for mitigating circumstances. For example, in R v Morton[2], the Court of Criminal Appeal considered s 4 of the then Penalties and Sentences Act 1985, which included a provision that the court 'may take a plea of guilty into account' in fixing sentence. If the court reduced the sentence 'it would otherwise have passed on a person, the court must state that fact when passing sentence'. The court said:

Sub-s (2) of s 4 requires a court to state the fact that it has reduced the sentence that it would otherwise have passed. The requirement is to state the fact, not the amount of the reduction, and although there is nothing to prohibit a court's stating the amount of the reduction, it will generally be impossible or misleading to do so unless a similar quantification is placed upon all the other elements or considerations that have led to the calculation of the sentence actually imposed. Indeed, it would generally be highly undesirable to do so.[3]

However, some ambivalence can be discerned in the authorities as to whether it is permissible to identify a specific discount attributable to an informant. In the South Australian case of R v Golding[4], Wells J[5] said:

A permissible judicial process in sentencing an alleged informant is to arrive at a sentence that would ordinarily meet the case if the prisoner were not an informer, and then to determine what, if any, allowance should be made by reason of his informing work.

In R v Perrier (No 2)[6], McGarvie J approved of the view expressed by Wells J in Golding. In dealing with the appropriate discount to be applied to a sentence in the context of co-operation by a heroin courier, his Honour said:

A statement of the sentence which would have been given if the courier had not co-operated, and of the amount by which that sentence has been reduced on account of the co-operation, makes clear to all concerned and emphasises not only the actual reduction which the co-operation has produced but also the severity of the sentence that would otherwise have been imposed.[7]

In the later case of R v Nagy[8], McGarvie J repeated remarks similar to those he had made in Perrier (No 2). However, he was in dissent on this occasion. Crockett J, with Phillips J in agreement, took a different view. He said:

I agree that the plea of guilty, together with the circumstances in which that plea was entered and the assistance already given and yet to be given (if the applicant's promise should be fulfilled) are in the circumstances of this case powerful factors that operate in favour of leniency. However, unless compelled by statute or public policy to do so, I consider, with respect, that the better course is to avoid the adoption of a process whereby an "undiscounted" term of imprisonment with regard to which certain mitigating factors are ignored, is first of all fixed and announced. This process appears to me to involve the adoption of the "two-tier process", which was expressly proscribed in R v Young [1990] VicRp 84; [1990] VR 951. Accordingly, I prefer to take into account all the matters relevant to mitigation and aggravation and to pronounce the sentence which the "instinctive synthesis" of those matters appears to me to produce.[9]

17 Those remarks, however, may not have been intended to prohibit absolutely the expressed quantification of a sentencing discount. In R v Mundy[10], Crockett J agreed with Nathan J, who discussed the effect of Perrier and Nagy and said:

I do not think the view that a fixed informer discount should be stated reflects the law, but that is not to say that a sentencing judge might not find it relevant in a particular case to recite a percentage discount, so long as it is assigned to a sentencing process then before the court.

The passage in Golding to which I have referred above was cited with approval by Young CJ in R v Schioparlan and Georgescu[11], although in a slightly different context. The Chief Justice referred to DPP v Richardson[12], in which case the courier who imported heroin into Australia agreed to take part in a 'controlled delivery', as a result of which two other men were charged and convicted. The sentencing judge granted the courier 'a very large discount - about fifty percent - for his co-operation with the police'. The sentence was appealed by the DPP. The appeal was heard by Murphy, McGarvie and Brooking JJ. In the course of his judgment, McGarvie J noted that in the case of a courier who had admitted the offence and pleaded guilty and provided co-operation resulting in the conviction of a principal trafficker, the period of sentence should be reduced by about two thirds by reason of such co-operation. Young CJ said:[13]

... we have referred to the case [referring to Richardson] at some length, lest it be thought that it should be taken as laying down authoritatively a standard of discount for informers in drug related cases. We do not so regard it, and for the present case with which we have to deal, we prefer only to say that every case must depend upon its own facts and we would not want to see the discretion of the sentencing judge unnecessarily circumscribed.

His Honour the Chief Justice then stated that there is an infinite variety of circumstances which may be encountered in the sentencing process, and in the assistance which is given by informers, and in the consequences of that assistance. He said:

This variety is ... well brought out in the very careful judgment of Wells J in Golding from which much useful assistance is to be obtained. His Honour (at 172:32) formulated certain propositions about sentencing informers of which the first is that the ample discretion exercised by sentencing judges should not be in any way curtailed or limited by inflexible rules.

18 In R v ZMN[14], the Court of Appeal considered the issue of an informer's discount. Charles JA referred to Golding in the following terms[15]:

In Golding, two prisoners had furnished the police for several years with important information about the illicit drug industry, their motive being to rid the drug taking community of violent men. This information had enabled the police to charge and procure the convictions of several drug traffickers. The Golding brothers had become addicted to drugs, which largely explained the series of armed robberies committed by them. Wells J, in an illuminating judgment, concluded that the brothers were entitled to a discount in the order of 50% having regard to all the mitigating circumstances disclosed. Among a series of propositions about sentencing informers, Wells J included the following:

2. A permissible judicial process in sentencing an alleged informant is to arrive at a sentence that would ordinarily meet the case if the prisoner were not an informer, and then to determine what, if any, allowance should be made by reason of his informing work ...

More recently, the High Court has given attention to the issue. In R v Markarian[16], McHugh J referred to two-tier sentencing in the following terms:

By two-tier sentencing, I mean the method of sentencing by which a judge first determines the sentence by reference to the "objective circumstances" of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier.

The joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ, in Markarian dealt with the question as follows[17]:

It is not useful to begin by asking a general question like: was a "staged sentencing process" followed. That is not useful because the expression 'staged sentencing process' may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that the sentencer has reasoned sequentially nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty or the offender's assistance to the authorities, of itself, reveals error.

The joint judgment reviewed the decision of the court in Wong[18] before concluding[19]:

Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends.

19 In the present case, the sentencing judge referred to the objective circumstances of the offending. He turned in some detail to the background of the appellant. He gave consideration to the psychiatric evidence before him and referred to the previous convictions of the appellant. He took into account the plea of guilty and expressions of remorse made by the appellant, and community support for him. He gave consideration to the prospects of rehabilitation. In my view, it cannot be said that he engaged in two-tier sentencing. It is apparent that his Honour engaged in a process of synthesis of all relevant considerations and that, having done so, he then considered it appropriate to state the specific numerical allowance which should be made for the appellant's co-operation with prosecuting authorities. As stated by the author of the Judicial College of Victoria's Sentencing Manual[20]:

... there is now no prohibition on taking a sequential approach to sentencing. The sentencer is entitled to identify significant considerations and indicate in broad terms their impact on sentence. There is not even any absolute prohibition in identifying in a simple case the arithmetic impact of different considerations. The fundamental rule is that the sentencer must not attempt to identify a figure that represents the "objective" gravity of the offence and then perform arithmetic operations upon that to take into account the "subjective" circumstances of the offender. That path, it would appear, is likely to obscure the necessity for the sentence to reflect a synthesis of all relevant considerations, and by that fault, to lead into error.

**20 In the argument before us, counsel for the appellant conceded that it is not necessarily a legal error for a judge to quantify the so-called informer's discount, but it is submitted that it should not have been done in this case. Furthermore, it was argued that if it were to be done, his Honour should have quantified the discount he had applied to both the head sentence, and the period of non-parole, fixed by him. In this regard R v Tan[21] was relied upon as authority for this proposition. Tan is not authority for that proposition. It is authority for the proposition that co-operation with authorities entitles reduction of both the head sentence and the non-parole period. There is no reason to doubt that his Honour took the matter of co-operation into account in respect of his consideration of both the appropriate head sentence and the appropriate non-parole term of imprisonment to be served by the appellant.

21 Although the course taken by the sentencing judge in identifying the precise discount to be made to the sentence by reason of the appellant's co-operation with authorities might be said to be uncommon, in the particular circumstances of this case I do not conclude that his Honour fell into error, and ground 1 is thereby not established.

22 It is submitted on behalf of the appellant that, notwithstanding the alleged error of adopting a two-tiered approach, the statement of the sentencing judge revealed an inaccurate assessment of the weight accorded by him to the mitigating factor of the appellant undertaking to give evidence against the co-accused. It is submitted that the weight allowed by the sentencing judge was clearly insufficient, the offer to assist authorities being a matter of policy which should be given great weight in mitigation of sentence. In this regard the sentencing judge in his sentencing remarks observed that lies told by the appellant to police when interviewed were 'a factor which had to be taken into account in assessing the value of [his] undertaking to give evidence against the two women'. It is submitted on behalf of the appellant that there was no suggestion that the appellant's statement was false or unreliable or that his undertaking was not genuine, and that his Honour's conclusion that the agreement to give evidence was of lesser value than might otherwise be the case was unjustified.

23 Quite clearly, the extent of the allowance for past and/or future co-operation depends upon the nature of the crime and the quality of the assistance. The appellant submits that as a matter of public policy the offer to assist authorities ought be given great weight in mitigation of sentence and attract a substantial discount. In this regard, counsel for the appellant relies upon R v McMahon[22]. That case is authority for the proposition that the 'discount appropriate to be given to a true informer will always be considerable'[23]. However, in the circumstances before us, the appellant can hardly be seen to be in the category of an informer who, at considerable risk, rendered very valuable services to police vis-à-vis the community.[24] The circumstance before us is that the appellant, when interviewed, lied to the police as to his and his co-accused's part in the offences. By contrast, the prosecution's opening statement upon the plea records that the two co-offenders were arrested and interviewed on 7 July 2005 and made full admissions in relation to these offences. It was later that day that the appellant was arrested and interviewed. However, on 2 November 2006, the appellant made a statement to police whereby he accepted his responsibility for the offences and implicated the two women as co-offenders. It would appear that at the time of the appellant's plea and sentence the co-offenders were intending to defend the charges which had been laid against them. Accordingly, his undertaking to the court was that he, as the principal offender, would give evidence against his co-offenders if called upon to do so. However, as the sentencing judge observed, the value of the appellant's undertaking was required to be assessed in the context of the brazen lies told to police by him in the course of his interview. As is submitted by the respondent in written submissions, clearly those lies would be used against the appellant in any trial to contradict the evidence he gave in accordance with his statement. Furthermore, as stated by Phillips CJ in R v Nguyen[25], the weight to be given to the appellant's co-operation has to be 'balanced against other considerations, including the seriousness of the appellant's major offence and its circumstances of aggravation'. In this case, the appellant's part in the major offence of engaging in reckless conduct endangering life was as the principal offender. It was he who recruited his co-offenders to assist him. It was he who drove to the complainant's home on two occasions. It was he who possessed the handgun, and it was he who used it. In my view, the value of the appellant's offer to give evidence against his co-offenders has to be considered in the light of such circumstances. Furthermore, it is apparent from the authorities that there is no such thing as a standard informer discount[26]. In my view, in all the particular circumstances of this case, the sentencing judge cannot be said to have given insufficient weight to the undertaking of the appellant to give evidence.

24 It is submitted that the sentence on each count, and the total effective sentence is manifestly excessive in all the circumstances, particularly in view of;

• the appellant's undertaking to give evidence against his co-accused,

• his psychological history and intellectual capacity which was the subject of evidence and reported on by Doctor Sullivan,

25 The sentencing judge stated that he allowed for a significant number of mitigating factors in favour of the appellant. He stated that the appellant's plea of guilty to all seven offences was 'foremost'. As stated above, he took into account the co-operation of the appellant with police. He observed that the appellant had expressed a high level of remorse to various people and that the appellant had excellent support from his family and from the Jewish community. He considered the question of rehabilitation, but expressed the opinion that he had reservations as to assessing such prospects as being any better than 'moderate'. He referred in some**

detail to the heroin addiction which the appellant acquired subsequent to suffering injuries in a motor cycle accident. On the other hand, the criminal history of the appellant was of significance. Of particular concern were convictions for armed robbery in 1994 and convictions in December 2001 of two charges of being a prohibited person in possession of a firearm.

**26 The objective circumstances of the crimes before the sentencing judge were serious. The threats to kill took place over a period of days. The first visit to the complainant's home late at night on 4 July 2005 was planned to cause harm to the complainant, and the aggravated burglary and assault upon her undoubtedly caused her great fear. Undeterred by what had happened on that occasion, the appellant planned a further entry to her home, this time armed with a loaded weapon that he was prepared to, and did, use. The circumstances relating to count 4, reckless conduct endangering life, were, as submitted by the respondent, a particularly grave form of this offence. The firing of two shots from the handgun through the door and window of the complainant's premises, in circumstances where the appellant knew that the complainant was in the near vicinity, constituted a high level of recklessness indeed. Not surprisingly, these events caused the complainant great emotional upset and trauma.

27 In my view, the individual sentences imposed were well within the range of sound sentencing discretion. The task of the sentencing judge was to impose a sentence that reflected the gravity of the offences and of the offending conduct, including such considerations as general and specific deterrence. In my view, the orders for partial cumulation were appropriate and the non-parole period does not speak of error. Ground 3 in my view is not established.

29 I too would dismiss the appeal. I want to say this in conclusion. The fact that we have been able to give judgment so soon after the conclusion of argument is not to be taken as signifying that the oral submissions have been overlooked. On the contrary, the opportunity we have had to explore and test the arguments advanced on behalf of the appellant is an essential part of the appeal process. We have, of course, had the benefit of very good written submissions on both sides filed well in advance, and they have enabled us, as always occurs, to undertake thorough preparation and hence to be in a position to derive maximum benefit from the oral argument.

30 I also agree with Kellam JA, for the reasons which his Honour has given, that this appeal should be dismissed.

[12] Unreported Court of Criminal Appeal 11 May 1990.

[24] McGookin and Robinson (1986) 20 A Crim R 438.

[26] See R v Cuthbertson, unreported Court of Appeal 13 November 1995 (Vincent AJA) at 6 and R v Perrier (No 2) [1991] 1 VR 771.

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